Desiree Hayward

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School

Carleton University

Department

Law

Course

LAWS 2301

Professor

Saunders- Carleton University

Semester

Fall

Description

October 24 2012
LAWS2301A
Lecture 6
Readings for the rest of semester to be posted
Reference points (from Chap. 3)
- Where does the criminal law come from? How do we produce it?
Constitutional definition of crime > Hogg article
> MacNeil & Rio Hotel cases (NOTE: THESE WILL NOT BE ON THE EXAM)
Role of Parliament (3.1 in text)
> history/issues > trends/lessons > codification; role of a General Part
Role of the Courts (3.2 in text)
> levels/powers (Hoskins; Murray) – Levels of courts HOWEVER POWER OF THE COURTS NOT ON EXAM
Reference points (Ch.3)
•Input: How do we get better input?
One major issue in input is the issue of who has and should have input? Victims, minorities and women
have always had little input in the CJS- The problem is how we open the process to give them more
input?
The other issue is expertise: The experts we have are all lawyers that only look to the technical sides of
issues- The problem is that we need to find ways to open up this process to other legal professionals
JUDGES= referred to as upper class amateurs: Meaning their backgrounds are from upper class society,
and therefore have little knowledge in bottom level social processes, and therefore are blind as in how
to process certain peoples
Therefore, we will look at it in light of how these inputs to the law affect us
•Consistency of approach: What process has the best principles to best guide the law in its development
and enforcement?
Lack of consistency in the components of the CJS and in its principles; Police just passing people on to
courts whose goals vary
•Certainty: Which production process allows us to know the law better? Is there one that is inherently
better? Are the courts or parliament better at establishing knowable processes?
Is it certain that if we break the rules and get punished for them? Or does this vary?
Is one process more logically set out than another?
•Speed/adaptability: a.k.a flexibility
The criticism of courts; it’s a very slow and haphazard process that results in piecemeal change
We can judge production processes in terms of their flexibility to the creation of new law and changes in
society
REALITY V. POTENTIAL
- The reality of the production process has been very sad; we have the potential to be certain and
knowable, but history has been very different, starting with British law
THINK BACK: The 4 authoritative sources; the constitution, legislation, case law (precedent),
administrative/tribunals/ regulations
Constitution Act, 1867
Constitutional defn: Who has the right to make criminal law?- Parliament and federal authority Exclusive federal authority under section 91 re:
•ss. 27 The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the
Procedure in Criminal Matters.
•ss. 28 The Establishment, Maintenance, and Management of Penitentiaries (BUT jails for less than 2
year sentences go to the provinces).
Exclusive provincial authority under section 92 re:
•ss.14The Administration of Justice in the Province, including the Constitution, Maintenance, and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction...
•ss. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the
Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this
Section.
MOST CRIMINAL CHARGES BEGIN AND END IN PROVINCIAL COURTS
Difference between federal and provincial: Don’t often agree in terms of process and purpose of laws
(Conservative gov’t wants provinces to build more penitentiaries)
HOWEVER: There has been a rise in the role of the provinces- A lot of them have spoken out about what
they want/need to spend their money on
Hogg article
Talks about the constitutional definition: It’s a prohibition, a penalty and a typically criminal public
purpose (Ewaschuck says this means to serve a public purpose and to generally relate to public peace,
order, generality and morality) THEREFORE, this does not give much direction, THINK law as being too
broad (Mitchell)
Constitutional jurisdiction: Law gun registry- Federal government argued it was a practical exercise of
criminal law matter
Criminal law in constitutional law:
•prohibition
•penalty
•“typically criminal public purpose”
EXAMPLES OF CONSTITUTIONAL JURISDICTION LAW
Note: These cases are pre-Charter
Bd of Censors and MacNeil (1978, SCC)
MACNEIL was a journalist that wanted to see a film that Nova Scotia that was banned
Courts said public morality is a provincial jurisdiction; Nova Scotia fought for the right to regulate what
their people deemed immoral
•Plaintiff seeking declaration that certain sections and regulations of Theatres and Amusement Act (NS)
unconstitutional as beyond the powers of the province
•Act gave wide censorship powers to Board
•NS appeal court: issue of public morality and therefore federal; struck down the provisions
•SCC: Act primarily deals with regulation, supervision and control of film business
•enacted for purpose of reinforcing authority vested in provincial body to perform such regulation;
deals with use of property • not concerned with creating a criminal offence or punishing, but true object is regulating business
(preventive not penal) HOWEVER this is concerned with punishment; punishes those who want to watch
the film
•areas of interest and operation are fundamentally different
•importantly, CC can still be enforced and is not affected; in pith and substance related to property and
civil rights: approved film could still be prosecuted and rejected film may be okay with CC
•but Regulation 32 struck down: re not permitting any indecent performance
Rio Hotel case (1987, SCC): Did not deal with Charter issues
•Concerned licensing scheme forbidding nude performances where liquor served; in granting license to
the hotel to serve liquor, attached a condition that no nude entertainment was permitted
•hotel argued such a condition relates to public morality and therefore within federal jurisdiction re
criminal law, and Code contains offences relating to public nudity (Hard to argue that this is not public
morality)
•NB: argued that purpose of scheme different from criminal law purpose which addressed public nudity
and obscenity, while license condition was directed towards type of entertainment that could be used as
marketing device for sale of liquor in the province
•“aspect doctrine” - subjects which in one aspect and for one purpose fall within s. 92, may in another
aspect and for another purpose fall within s. 91
•If subject matter has a double aspect, then both can operate as long as there is no direct conflict
between two schemes
•mere duplication not a direct conflict, rather they must be contradictory
•SCC: province can regulate sale of alcohol under s. 92
•legislation regulating valid provincial area though aspect touched on federal jurisdiction; some overlap
between license condition and CC provisions, but no direct conflict
•“primary object” of CC section: to punish entertainers and proprietors who breach the prohibitions on
public nudity
•provincial law can operate concurrently with CC provisions
Versus: Westendorp case: city of Calgary tried to regulate prostitution via by-laws on use do city streets:
intruded on federal law on solicitation
Also, court said no penal consequences, just lose license livelihood
Shows that criminal law is not necessarily effective from a municipal point of view; sometimes needs
regulating from bylaws and the provincial government
Another example, in testing blood alcohol levels on driver, the municipality takes a harsher point of view
on what the level should be versus the federal government
PROVINCIAL AND MUNICIPAL: MORE REGULATORY
NOTE: Rio Hotel case and MacNeil case not on exam
Ewaschuk on codification: Said codified law reflected the past 200 years; based on past cases that were
outdated at the start
Said government never looked towards a more comprehensible code; A lot of the wording in the C.C has
never been simplified
•codified existing law in 1892; outdated from the start •nothing re principles; Says it’s not a true code in the Continental sense; Lacks a set of over-arching
principles as to what we want to accomplish
The first time we see principles listed in the code is in 1995; still not very coherent, only exist in
sentencing provisions
Criticism of this; Government threw everythi